How to approach suspensions if the collective agreement is silent
Question: Can a unionized employer suspend an employee if the collective agreement doesn’t mention suspension as a form of discipline? How should an employer approach disciplinary issues if discipline isn’t adequately addressed in the collective agreement?
Answer: Generally speaking, an employee who is covered by a collective agreement can only be disciplined or discharged for just and reasonable cause. Most collective agreements expressly contain this requirement, and where the agreement is silent, the labour relations statutes in most Canadian jurisdictions make it a term of the agreement that just and reasonable cause is required for the discipline or discharge of a bargaining unit employee.
Some collective agreements prescribe the disciplinary penalties an employer is entitled to impose on employees, or require the employer to follow a particular progression of corrective discipline. Where such provisions exist, they should be followed. In most cases, however, the collective agreement is silent on the issue of disciplinary penalties.
In the absence of specific requirements set out in the collective agreement, or required by policy or practice, an employer that wishes to discipline an employee will need to choose a penalty that is appropriate in all circumstances.
The first question to be asked is whether or not the employee has committed an act or omission that is deserving of some form of discipline. If the answer is yes, the next question is what disciplinary penalty ought to be imposed, under all the circumstances of the case. In deciding on the appropriate penalty, employers are well advised to consider the factors outlined in leading decisions such as Steel Equipment Co. and Wm. Scott & Co. Such factors include the seriousness of the offence, the nature and extent of employee’s disciplinary record, the length of the employee’s service, whether the infraction was an isolated incident, the existence of any provocation, whether the offence was premeditated, whether any factors exist that would suggest negative intent, the existence of an apology, the manner in which similar cases have been treated by the employer in the past, and the application of employer policies and rules.
For all but the most serious offences, most arbitrators will expect an employer to follow a system of progressive discipline, under which the sanctions imposed on an employee gradually increase in severity. An example of a progressive discipline scheme would involve an oral warning, followed by a written warning, a short suspension, a longer suspension accompanied by a threat of dismissal, and finally discharge.
For more serious forms of misconduct, a suspension may be appropriate even if the employee has no prior disciplinary record. For example, a serious safety infraction may entitle an employer to move straight to a suspension, without first having to provide the employee with a warning.
When an employer is deciding on the appropriate penalty, it is prudent to keep in mind that the discipline may be subject to review by an arbitrator. The arbitrator will review the circumstances to determine whether there was just cause for discipline, the penalty was reasonable and proportional, and the appropriate mitigating factors were considered. If the arbitrator finds that any of these tests have not been met, the arbitrator may set aside the discipline or substitute a different penalty.
For more information see:
•Steel Equipment Co. (1964), 14 L.A.C. 356 (Reville).
•Wm. Scott & Co.,  1 Can LRBR 1 (B.C. Lab. Rel. Bd.).